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Improving Access to Post-Conviction DNA Testing, The Justice Project, 2008

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THE JUSTICE PROJECT

Improving Access to
Post-Conviction
DNA Testing

Kirk Noble Bloodsworth spent

A Policy Review

almost nine years in prison .
for the rape and murder of .
nine-year-old Dawn Hamilton
before DNA testing proved .
he did not commit the crime.
To date, more than two-hundred
wrongfully convicted people .
have been exonerated through
post-conviction DNA testing.

Introduction............................................... 1
Problems & Solutions............................ 2
The Legal Landscape............................ 5
Benefits & Costs...................................... 8
Profiles of Injustice................................. 9
Snapshots of Success......................... 13
Voices of Support................................ 14
Questions & Answers......................... 16
A Model Policy...................................... 17
Statistics................................................... 24
Literature. ................................................ 24

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“When innocent people are convicted
and the guilty are permitted to walk
free, any meaningful reform effort
must consider the root causes of these
wrongful convictions and take steps
to address them.”
—P atrick L eahy
S enior U nited S tates S enator

from

V ermont

THE JUSTICE PROJECT

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INTRODUCTION

D

NA testing is a remarkable technology that has
counsel for post-conviction DNA testing petitioners.
developed rapidly since the first accurate descripThe federal government recognized the importion of DNA in 1953 by scientists James Watson and
tance of post-conviction DNA testing with the
Francis Crick. DNA has emerged as a highly reliable
passage and signing into law of the Innocence
source of information and a powerful tool for proving
Protection Act on October 30, 2004.1 Included in
guilt and innocence. Its
the Innocence Protection
many benefits are becomAct (IPA) is a post-conThe Justice Project Recommendations:
ing increasingly clear
viction DNA testing pro•.States.should.require.the.preservation.
to courts, prosecutors,
gram that authorizes $25
of.biological.evidence.throughout.
defense counsel, and to
million over five years
the public. Post-convicto help states defray the
a.defendant’s.sentence.and.devise.
tion DNA testing gives
costs of post-conviction
standards.regarding.custody.of.evidence..
those who have been
DNA testing.2 The pro•.States.should.ensure.that.all.inmates.
wrongfully convicted an
gram is named after Kirk
with.a.DNA-based.innocence.claim.may.
opportunity for relief, and
Bloodsworth, the first
petition.for.DNA.testing.at.any.time.and.
has been used to exondeath row inmate whose
without.regard.to.plea,.confession,.selferate over two-hundred
innocence was proven
implication,.the.nature.of.the.crime,.or.
innocent people in the
by DNA analysis. The
previous.unfavorable.test.results.
United States. DNA testtime is right for states to
ing also makes possible
follow the federal gov•.States.should.require.judges.to.grant.
the prosecution of “cold”
ernment’s lead in passpost-conviction.testing.petitions.when.
cases, and many states are
ing comprehensive posttesting.may.produce.new.material.
establishing DNA dataconviction DNA testing
evidence.that.raises.a.reasonable.
banks for convicted fellaws. Expanding postprobability.of.the.petitioner’s.innocence.
ons to find new leads in
conviction DNA testing
or.reduced.culpability..
old cases.
contributes to a more
Without post-conaccurate criminal justice
•.States.should.ensure.that.petitioners.
viction DNA testing, it
system and restores pubhave.access.to.objective.and.reliable.
is likely that the more
lic confidence in the abilforensic.analysis.at.independent.and.
than two-hundred DNA
ity of the system to corprivately.funded.labs,.subject.to.judicial.
exonerees would still be
rect its own errors.
approval.
in prison today. A majorWhile DNA testing
•.States.should.provide.counsel.and.cover.
ity were convicted before
has become the new gold
the.cost.of.post-conviction.DNA.testing.
DNA testing could have
standard for determinin.cases.where.a.petitioner.is.indigent.
proven their innocence
ing guilt or innocence, it
in court. Some of them
does not necessarily solve
•.States.should.standardize.post-testing.
would still be awaiting
the problems of wrongprocedures.for.cases.that.produce.
execution, or would have
ful convictions. The vast
testing.results.favorable.to.a.petitioner.
been executed, for crimes
majority of criminal cases
they did not commit. As
do not include biologiof June 2008, all but seven states have laws addresscal evidence that could definitively determine the
ing post-conviction DNA testing. Many states’ laws,
identity of the perpetrator through such an accurate
however, are too lax in their standards for preserving
testing method. Still, where such evidence is availevidence, and the windows in which a defendant can
able and can provide compelling information about a
introduce “new evidence” are often unduly narrow.
criminal offense, justice demands that DNA testing
Furthermore, most state laws fail to provide adequate
be conducted.
1
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The Justice Project has developed this policy
review to facilitate communications among the legal
community, local law enforcement agencies, policymakers, the public, and others by explaining the
problems surrounding post-conviction DNA testing,

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and by recommending positive reforms that can significantly improve its practice. By implementing the
reforms recommended in this policy review, states
can significantly increase fairness and accuracy in the
criminal justice system.

PROBLEMS & SOLUTIONS

T

he passage of post-conviction DNA testing
their laws. The following reforms will allow states to
statutes acknowledges the serious flaws in our
remedy many of their failures to do justice.
system of justice while providing an opportunity to
increase the credibility and quality of the system.
States should require the preservation of
In 2004, Congress passed the Innocence Protection
biological evidence throughout a defendant’s
Act (IPA), which authorizes federal funding to states
sentence and devise standards regarding
whose programs comply with certain requirements
custody of evidence.
of the Act. While the Innocence Protection Act put
The loss or destruction of DNA evidence jeopthe federal government at the forefront of post-conardizes the integrity of the criminal justice system.
viction DNA testing, there are still seven states that
After spending twelve years in prison, Kevin Byrd was
do not have post-conviction DNA testing statutes.3
exonerated based on DNA evidence. At the time of his
Of the states that do have
exoneration and pardon, thenpost-conviction DNA testing
Governor George W. Bush said
The loss or destruction of
statutes, many limit access to
he expected Byrd’s to be the
DNA evidence jeopardizes
post-conviction DNA testing
first of many re-examinations
by allowing the destruction
of old cases using preserved
the integrity of the criminal
of evidence or unreasonably
DNA evidence. However, withjustice system.
limiting the conditions under
in a week, evidence custodians
which a defendant can petition
at the Harris County Clerk’s
4
for testing. In some states, innocent people remain
office willfully destroyed at least fifty old rape kits in
imprisoned due to legal and bureaucratic hurdles
storage, making any relief for others wrongfully conthat prevent post-conviction DNA testing. In Idaho,
victed extraordinarily difficult, if not impossible.6 The
for example, a defendant only has one year to file a
Supreme Court had ruled in Arizonav.Youngblood that
5
post-conviction DNA testing petition. Historically,
loss or destruction of evidence is a violation of due
courts have limited the amount of time one can petiprocess if it is done in an act of “bad faith.” 7 However,
tion for relief because “new evidence” has traditionTexas and federal law sanctioning the destruction of
ally become less reliable as time lapses. DNA evithese kits effectively precluded any claim that the
dence is different. In fact, DNA evidence can last for
destruction was an act of “bad faith” as well as any
decades, and can be used to prove guilt or innocence
judicial censure on those grounds. Mr. Byrd’s own
with greater accuracy long after cases close. Statutes
evidence had been slated to be destroyed before it was
that limit accessibility to such powerful evidence
tested. Whether due to a filing error or an unknown
compromise the fairness and accuracy of our criminal
party’s intentional intervention, his evidence was saved,
justice system.
and it proved his innocence. Statutes requiring preserStates should enact laws requiring the most
vation of evidence would significantly expand opporexpansive use of DNA evidence possible. States with
tunities to correct otherwise irreversible errors.
post-conviction DNA testing statutes that create barCurrently, all but twelve states (and the District
riers to accessibility of such evidence should revise
of Columbia) lack statutes requiring the preservation
2
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THE JUSTICE PROJECT

of evidence throughout an inmate’s incarceration.8
Even in states with such statutes on the books, rules
regarding the preservation of evidence are often
ignored. In New York City, for example, despite the
support of prosecutors for post-conviction DNA
testing, such testing did not happen in several
cases because evidence had been lost.9 States must
require that evidence be preserved and catalogued
throughout an inmate’s sentence, and destroyed only
upon written permission from the defendant or the
defendant’s attorney. States should also devise standards regarding the proper collection and retention
of biological evidence, and administer training programs for those charged with evidence preservation.
It is essential that the chain of custody over DNA
evidence be documented as long as evidence is preserved to ensure that DNA evidence is accessible and
has not been tampered with or otherwise altered.

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analysis (RFLP), matched a suspect to DNA at the
rate of one in many millions, but required relatively
large and well-preserved samples and took up to
six weeks to analyze. The short tandem repeat test
(STR), developed in the late 1990s, could be performed on much smaller samples. Furthermore, with
match rates of up to one in a trillion, STR tests are
more discriminating than the older RFLP tests. They
can therefore exclude more suspects as the source of
crime-scene DNA and prove the innocence of wrongfully incarcerated individuals where RFLP tests could
not.13 Because DNA testing technology continues to
improve, a defendant’s right to request testing must
not be subject to time limitations. If new technology
has been developed that might change the outcome
of a test, it is necessary to perform a new test.
States should require judges to grant postconviction testing petitions when testing may
produce new material evidence that raises
a reasonable probability of the petitioner’s
innocence or reduced culpability.
Unclear or extraordinarily complex standards
to initiate testing often limit a petitioner’s ability to
prove his or her innocence. In states without testing
statutes, standards for gaining access to DNA testing are inconsistent; statutes are not the only means
to secure testing, but without statutes wrongfully
convicted prisoners have few reliable and consistent
opportunities available to use DNA to prove their
innocence.14 States should enact statutes specifying
the procedures a court is to follow when a defendant
files a petition for DNA testing, in order to reduce
administrative mistakes, increase efficiency, and codify this essential process. In determining whether
to permit DNA testing, a judge should consider
whether the results of DNA testing are materially
relevant to a claim of innocence and/or might lead
to a lesser sentence. If the court determines there is
reasonable probability that the results will meet one
of these criteria, post-conviction DNA testing should
be performed.
While there are a number of states that require a
defendant simply to show that post-conviction DNA
testing could provide new, relevant evidence, there
are also many that require the defendant to prove
that the results of DNA testing would conclusively
demonstrate their innocence. Because few courts or

States should ensure that all inmates with a
DNA-based innocence claim may petition for
DNA testing at any time and without regard to
plea, confession, self-implication, the nature of
the crime, or previous unfavorable test results.
Limiting access to post-conviction DNA testing on the basis of a plea, confession, or previous
unfavorable test result undermines the fairness and
accuracy of the criminal justice system. Excluding
defendants who confessed or pled guilty does not
take into account evidence that many false confessions and even some plea bargains are obtained from
innocent people.10 Nearly a dozen of the more than
two-hundred DNA exonerees in the United States
initially pled guilty, and fifty of the first two-hundred
purportedly confessed to crimes that they did not
commit.11 When test results could be probative of
guilt or innocence, or are relevant to a sentencing
determination, defendants must be permitted to petition for post-conviction DNA testing regardless of
their pre-trial plea or confession.
Time limitations on a wrongfully convicted person’s right to petition for DNA testing do not reflect
technological changes that have occurred or may
occur. Without proper preservation requirements,
exculpatory DNA evidence might only be found
after many years have elapsed and new technology
has developed.12 The original method used to test
DNA, Restriction Fragment Length Polymorphism


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juries rely entirely on one piece of biological eviforensic science commission and requiring federal
dence for a conviction, such standards make it diflaboratories to undergo frequent audits.19 States
ficult to petition successfully for testing.
should follow the federal government’s lead by creatThe Innocence Protection Act specifies that posting standards and regulations to increase and mainconviction DNA testing should be performed if it
tain the objectivity, reliability, accuracy, and efficiency
may produce new material evidence that would “raise
of forensic laboratories, and ensure that forensic
a reasonable probability that
analysis is performed in accorthe applicant did not commit
dance with the highest scien“[T]he criminal justice
the offense.”15 Senator Patrick
tific standards. Ideally, a stateLeahy, co-sponsor of the IPA,
run oversight board would set
system should err on the
commented that this standard
and enforce standards for laboside of permitting testing,
reflects “the principle that the
ratory accreditation. A good
in light of the low cost of
criminal justice system should
accreditation program should
err on the side of permitting
provide an independent review
DNA testing and the high
testing, in light of the low cost
of management practices and
cost of keeping the wrong
of DNA testing and the high
lab policies, while taking steps
person locked up.”
cost of keeping the wrong perto ensure that testing and analson locked up.”16 States should
ysis are performed accurately.
—Senator Patrick Leahy
follow the federal model for
An evidence tracking system
allowing DNA testing, which
should be implemented to
is less cumbersome and allows more opportunities for
allow easy access to evidence at all times.
those wrongfully convicted to prove their innocence.
To best ensure the objectivity and reliability of
forensic analysis, laboratories should be independent
States should ensure that petitioners have
from the jurisdiction or control of law enforcement
access to objective and reliable forensic
or any prosecutorial body. Some states have already
analysis at independent and privately funded
adopted this reform.20 A defendant should have
labs, subject to judicial approval.
access to independent forensic experts of his or her
Due to the high levels of credibility that forenchoosing, subject to the agreement of the prosecutor
sic testimony has with jurors, erroneous or misand the approval of the court. If the parties cannot
leading forensic science severely undermines the
agree on a laboratory, the court should designate a
fairness and accuracy of criminal trials. A recent
testing facility and provide parties with a reasonable
independent investigation found that analysts at the
opportunity to show cause for the court to allow testHouston crime lab repeatedly tested DNA samples
ing to be performed at their preferred facility.
incorrectly and, in some cases, made up results withTimeliness requirements must be a compo17
out actually testing evidence. The special investinent of any comprehensive post-conviction statute.
gator hired to examine the lab’s work recommended
Statutes that require DNA testing to be done “as
retests of many cases, which so far have proven the
soon as practicable,” such as North Carolina’s, are
innocence of three men who were wrongfully congood models.21 States should ensure that rapid testvicted by incorrect testing and misleading or false
ing is practicable by eliminating any backlog of evianalyst testimony.18
dence waiting to be tested.
Most states lack statutory standards for forensics
laboratories to prevent wrongful conviction as a
States should provide counsel and cover the
result of incorrect or improperly conducted tests.
cost of post-conviction DNA testing in cases
At the federal level, Congress acknowledged the
where a petitioner is indigent.
need for forensics reform by passing the Justice for
The complexity of the petitioning process creAll Act of 2004. The bill directly addresses the need
ates an unreasonable burden for a wrongfully confor forensic oversight, instructing the U.S. Attorney
victed person who needs DNA testing to prove his
General to create and appoint members to a federal
or her innocence. The National Institute of Justice
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THE JUSTICE PROJECT

issued a report outlining appropriate steps in filing
a petition for post-conviction DNA testing, which
include but are not limited to: (1) gathering trial
transcripts, laboratory reports, police reports, appellate briefs, post-conviction briefs, and evidence collection lists; (2) investigating and searching for evidence; (3) sending letters to ask custodial authorities
to preserve evidence; (4) consulting with prosecutors;
(5) learning procedures for executive clemency;
(6) deciding on a laboratory and method of testing;
(7) establishing a chain of custody; and (8) learning
the law in the relevant state.22 As one scholar notes,
“[i]ndigent inmates serving hard time may not have
the resources or access to counsel to gather the necessary materials expeditiously.”23 The task is difficult
even for experienced advocates. Relegating this job
to petitioners creates a barrier to seeking truth and
finding justice. Furthermore, without a lawyer, many
petitioners may not know the full extent of their
rights for post-conviction DNA testing. They may
assume that their time for testing has run out, or
that their DNA samples have been discarded. For
a petitioner without a lawyer, the nominal ability
to petition for post-conviction DNA testing will be
practically meaningless. States must provide legal
counsel to indigent petitioners to help navigate the
complex process.
Generally, states that have post-conviction DNA
testing laws have been reasonable about providing
testing to all eligible inmates regardless of financial
circumstances, but some state statutes are silent on

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the matter. If an individual cannot pay for DNA testing, the state has an obligation to cover the costs.
States should standardize post-testing
procedures for cases that produce testing
results favorable to a petitioner.
Even when the results of DNA testing conclusively show that the petitioner is innocent, he or she
may remain in legal limbo that further delays fairness
in the criminal justice system. Because DNA testing
statutes in some states do not provide for any type of
post-testing procedure, states may neglect to identify
the true perpetrator of the crime, or even continue to
imprison an innocent individual. An in-depth study
of the first two hundred individuals exonerated by
DNA testing found that “[f]orty-one (or twenty-one
percent) received a pardon from their state executive, often because they lacked any available judicial
forum for relief.”24
States must enact policies governing the action
a court should take following testing that produces
favorable results to the petitioner. The court should
schedule a hearing to determine the appropriate
relief to be granted, whether it is an order granting a
new hearing, an order releasing the petitioner from
custody, or an order to address the urgent need for
relief as the situation may require. Once DNA testing has proven a petitioner’s innocence, relief should
be provided as soon as possible. States must institute
procedures to allow an innocent person relief in an
expeditious manner.

THE LEGAL LANDSCAPE

W

hen DNA evidence was first introduced into
the criminal justice system, many regarded it
as a powerful tool to assist prosecutors in convicting and incarcerating the guilty. DNA evidence has
also gained attention as a remarkable method of
proving the innocence of the wrongfully convicted.
DNA plays a vital role in exonerations, thus it
is important to understand how this issue has
developed in the legal field and the consequent
impact of the judicial debate on post-conviction
DNA testing.

FEDERAL APPROACH
By 1996, post-conviction DNA testing had
become a prominent issue in the legal community.
As a result, the U.S. Department of Justice published
a report detailing the stories of twenty-eight men
who were exonerated based on post-conviction DNA
testing.25 The report drew serious attention from
both the scientific and the criminal justice communities. Consequently, Attorney General Janet Reno
established the National Commission on the Future
of DNA Evidence “to identify ways to maximize the


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value of DNA in our criminal justice system” and to
destroyed.33 On the other hand, in Youngblood, the test
provide recommendations for prosecutors, defense
is not centered on the probative value of the destroyed
attorneys, and judges on how to handle requests for
evidence but rather on the government’s actions and
post-conviction DNA testing.26 While these stanthe circumstances surrounding the destruction of the
dards were only recommendations, they provided
evidence.34 The Youngblood ruling held that due process
guidance that ultimately shaped some state legislais not violated unless the defendant can show that the
tion and, when not mandated by state law itself, were
loss or destruction of evidence is an act of “bad faith.”35
27
adopted by many prosecutors’ offices.
The bad faith standard is nearly impossible to prove
In 2000, Senator Patrick Leahy introduced the
and the three dissenting Justices in the case pointed
Innocence Protection Act (IPA) in Congress. While
out that the line between good faith and bad faith is
the IPA incorporated many of the recommendations
often difficult to judge.36 Proof that the party responpromulgated by the Justice Department Commission,
sible for the destruction of evidence acted in bad faith
it also put forth unique standards aimed at addressing
has been elusive for most defendants. In the twelve
weaknesses in the Commission’s
years following the ruling, only
recommendations. Most notathree decisions were published
The Innocence Protection
bly, the IPA proposed a uniin which a judge ruled that
Act provides access to
form national standard for
bad faith was a factor, and thus
access to DNA testing and for
violated the defendant’s right to
post-conviction DNA
procedures that courts should
due process.37
testing
in
federal
cases
follow when confronted with
exculpatory post-conviction
Federal Courts
and, with some exceptions,
DNA evidence.28 On October
Although circuit courts
prohibits the destruction of
30, 2004 the IPA was signed
have been reluctant to address
DNA evidence in a federal
into law.29 Among other provithe issue of requests for postsions, the IPA provides access
conviction DNA testing, one
case while a defendant
to post-conviction DNA testcase in particular demonstrates
remains
incarcerated.
ing in federal cases and, with
the need for legislative action to
some exceptions, prohibits the
ensure proper procedural safedestruction of DNA evidence in a federal case while
guards. In Harveyv.Horan
Harveyv.Horan, petitioner James Harvey
a defendant remains incarcerated.30 The IPA also
requested access to the biological evidence from his
established the Kirk Bloodsworth Post-Conviction
case being held by the Commonwealth of Virginia.38
DNA Testing Program, which awards grants to states
Although the evidence had been previously tested
in order to help defray the costs of post-conviction
using the procedures that were available at the time of
DNA testing.31
his trial in 1990, Harvey sought access to the evidence
in order to have it retested using more advanced techCOURTS’ APPROACH
nology. The Fairfax County Commonwealth Attorney
Supreme Court
refused to turn over the evidence. The Fourth Circuit
Lower courts have looked to the Supreme Court
upheld the Commonwealth’s Attorney’s action, holdfor guidance over the issue of DNA preservation,
ing that Harvey’s request for post-conviction DNA
specifically in California v. Trombetta and Arizona v. testing did not apply to the limited purposes of
Youngblood.32 While both cases present doctrines that
section 1983 claims under U.S. Code, which are
define when due process mandates evidence preservaintended to redress constitutional and federal statute
tion, the cases differ on how to determine when the
violations, neither of which Harvey claimed were
destruction of evidence constitutes a violation of a defenviolated.39 While the Fourth Circuit denied Harvey’s
dant’s right to due process. In Trombetta, the Supreme
request, the court noted that criminal defendants
Court formulated a test that focuses on the probative
should not be precluded from “avail[ing] themselves
value of the destroyed evidence and whether apparent
of advances in technology.”40 The court further stated
exculpatory value existed in that evidence before it was
that “if this entitlement is to be conferred, it should
6
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be accomplished by legislative action rather than by a
federal court as a matter of constitutional right.”41

the Iowa Supreme Court held that post-conviction
DNA testing was not newly discovered evidence since
some form of serological testing existed at trial and
State Courts
the defense failed to use it.49 The court noted that
New York State courts were among the first
in order for evidence to be considered newly discovto deal with the issue of how to classify requests
ered, the evidence must not only be relevant but also
by inmates for post-conviction DNA testing and
likely to change the case’s outcome.50 Even in states
to provide post-conviction DNA testing by statlike New York, where courts had previously held that
ute. In 1990, New York’s Supreme Court, held in
requests for post-conviction DNA testing constituted
Dabbsv.Vergari that Charles Dabbs was allowed to
“newly discovered evidence,” the New York Supreme
conduct post-conviction DNA testing, finding that
Court, Appellate Division held that it was not new
Dabbs’ request should be treated as a post-conviction
evidence when some form of testing had existed at the
motion for discovery.42 The court pointed to Brady time of trial, but the defense did not use it.51
v.Maryland noting that “notIllinois, the second state
withstanding the absence of a
to provide post-conviction
New York State courts were
statutory right to post-convicDNA testing by statute, also
among the first to deal with
tion discovery, a defendant has
contributed significantly to
a constitutional right to be
case law in favor of a defenthe issue of how to classify
informed of exculpatory infordant’s right to post-conviction
requests by inmates for
mation known by the state.”43
DNA testing. In 1996, the
Based on the DNA evidence,
Illinois Supreme Court found
post-conviction testing and
which rendered exculpatory
that newly discovered evito provide post-conviction
results, Dabbs was exonerated
dence that shows a defendant
DNA testing by statute.
nine years after his convicis actually innocent is within
tion.44 Following Dabbs the
the jurisdiction of the court as
Suffolk County Court held in People v. Callace that
a matter of due process.52
while Brady was not applicable to Callace’s case, postIn 1999, the South Dakota Supreme Court was
conviction DNA testing could be classified as “newly
also confronted with the issue of requests for postdiscovered evidence” since DNA analysis was not
conviction DNA testing.53 The petitioner, who was
45
available for the defendant at the time of trial.
convicted of murder and sentenced to life in prison,
After Dabbs, other states began dealing with the
moved for post-conviction discovery in order to
issue of requests for post-conviction DNA testing.
obtain access to evidence that had been microscopicalIn 1991, the New Jersey Superior Court Appellate
ly examined during his trial, but had not been tested
Division granted a defendant the chance to conduct
using DNA analysis.54 Because South Dakota lacked a
post-conviction DNA testing based on recent develstatute establishing a procedural right to post-convicopments in the scientific and judicial community.46 In
tion DNA testing, the court had to promulgate a judi1992, Indiana’s Appellate Court held that the defendant
cial rule and denied the petition for post-conviction
was entitled to post-conviction DNA testing based on
DNA testing, finding “no likelihood that a favorable
the fact that the defendant did not have access to the
DNA test result of the hair and blood evidence would
testing at trial.47 Also in 1992, Pennsylvania’s Superior
produce an acquittal if a new trial was granted.”55
Court vacated the defendant’s conviction, and ordered
States should not rely on the inconsistent and often
the state to conduct DNA analysis.48
arbitrary approaches state courts have taken toward
Requests for post-conviction DNA testing inipost-conviction DNA testing. Since 1997, forty-three
tially proceeded on a case-by-case basis. Some courts
states (and the District of Columbia) have passed postclassified the post-conviction DNA testing as newly
conviction DNA testing statutes. But many of these
discovered evidence while others did not, especially
statutes need improvement. All states should enact
in cases in which the defendant could have had access
statutes that ensure consistent, meaningful, and effecto testing at the time of trial. For example, in 1994
tive access to post-conviction DNA testing.
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BENEFITS & COSTS

A

the intervening years.”58 Every wrongful conviction undermines the justice and fairness that citizens
expect from the American judicial system.

s with any good policy, the benefits of postconviction DNA testing statutes outweigh the
costs. While post-conviction DNA testing statutes
require states to incur initial costs, the costs are
minimal and could end up saving states money in the
long run.

BENEFITS OF REFORM
Post-conviction DNA testing provides an outlet—often the only outlet—through which defenCOSTS OF WRONGFUL CONVICTION
dants can prove their innocence. If a piece of retested
The most obvious cost of a judicial system withevidence reveals a new DNA profile that does not
out post-conviction DNA testing is the denial of
match the petitioner’s, not only can the defendant be
justice for innocent prisoners. Many exonerees lose
released or at least granted a new trial, but the new
more than years of their life behind bars.
profile can be run through the FBI’s nationwide DNA
Families of the wrongfully
database, the Combined DNA
convicted also bear an intense
Index System (or CODIS). If
The main costs of postburden. While Clarence Elkins
the true perpetrator has been
spent seven years in prison after
arrested since 1994, when the
conviction DNA testing
being wrongfully convicted, his
DNA Identification Act passed,
reform are threefold: the
wife, Melinda, led a public camhis DNA may be in the datapaign to uncover the truth, and
base, enabling police officers
costs accrued by the time
his two sons assigned themto identify him with a so-called
judges and clerks spend
selves night watchmen duties at
“cold hit.” Conversely, if a
in court, the laboratory
their home because they were
defendant was convicted before
afraid that the real killer might
1994 and has a piece of evitesting fees, and the
come to silence their mother.56
dence retested, his DNA will
physical
space
to
store
Wrongful convictions also probe added to the database. Even
forensic evidence.
long and exacerbate the sufferif the results are in his favor and
ing of crime victims and their
he is exonerated of the crime
families. Jennifer Thompsonfor which he was sentenced, his
Cannino, who was raped when she was twenty-two
DNA can be tested for other unsolved crimes. This
years old, was absolutely certain that her rapist was
system not only achieves further cold hits, but it also
Ronald Cotton, who spent more than ten years
deters defendants who have committed crimes from
in jail before being exonerated by DNA testing.
frivolously petitioning for testing.
Thompson-Cannino, who identified Cotton in sevAdditionally, a record of the cases in which defeneral lineups, suffers from a deep sense of guilt for
dants have been wrongfully convicted, incarcerated,
her part in Cotton’s lost years: “Ronald Cotton and I
and finally exonerated provides law enforcement offiare the same age,” she now says, “so I knew what he
cials with invaluable data that can aid in the prevention
had missed during those eleven years. …I live with
of further wrongful convictions. Prosecutors and law
constant anguish that my profound mistake cost him
enforcement can analyze verdicts where post-convicso dearly.”57
tion DNA testing has overturned a sentence to recogEach time a person is wrongfully convicted, the
nize trends that point to weaknesses in their investigaactual perpetrator remains free to commit more
tion strategies. Correcting these weaknesses can create
crimes. In forty percent of the cases handled by The
a more fair and accurate criminal justice system, but
Innocence Project, DNA testing both exonerates
also raise the credibility of the evidence in a case.
the innocent and identifies the actual perpetrator.
Each DNA exoneration demonstrates that our
Furthermore, “[i]n every single one of those cases,
criminal justice system failed to provide justice.
that perpetrator had committed violent crimes in
However, it is even more important to public confi8
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THE JUSTICE PROJECT

dence in the criminal justice system that the wrongfully convicted be able to make a DNA-based case.
By allowing those individuals with claims of being
wrongfully convicted to prove their innocence, we
restore some measure of public confidence—and
some measure of trustworthiness—to our criminal
justice system.

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testing will be front-heavy for two reasons. As preconviction DNA testing becomes standard procedure,
there will be fewer defendants petitioning for relief.
Because of continued technological innovation, those
more recently incarcerated will certainly still petition—as they should have the right to do—but once
the backlog is cleared, the influx of petitions will slow.
In New York, for example, the state received petitions
from only one-hundred inmates during the first seven
years of its post-conviction DNA testing statute.61
In addition, as with most technology, even the most
expensive DNA tests are becoming cheaper as the
technology matures and becomes more widely used.
Third, securing proper facilities and space for
storing evidence during the length of a defendant’s
incarceration will incur costs. The price of expanding
the storage of forensic evidence will vary from state
to state, depending on how inclusive their existing
procedures of retaining evidence are. The state of
Texas determined that the increased costs of an identical program would “not have any significant fiscal
impact on [Department of Criminal Justice] agency
operations.”62 Contrary to popular belief, not all
DNA evidence requires expensive refrigeration units.
Rather, most DNA evidence can be safely stored at
room temperature, as long as the temperature is constant and the air is dry.63 Furthermore, because scientists can conduct DNA tests on microscopic pieces of
evidence, evidence custodians only need preserve the
parts of evidence that contain DNA matter. Strands
of hair, swabs of fluid, and clippings from garments
do not take up nearly as much room as the pounds of
narcotics that many jurisdictions retain.

COSTS OF REFORM
The main costs of post-conviction DNA testing
reform are threefold: the costs accrued by the time
judges and clerks spend in court, the laboratory testing
fees, and the physical space to store forensic evidence.
First, it is worth mentioning that some individuals petition for DNA testing regardless of whether
a law specifically provides for it. Due to the lack of
clear procedure, these post-conviction DNA testing
petitions require a good deal of time and resources.
A strong post-conviction DNA testing statute provides courts and petitioners with guidelines to
streamline and simplify the process. Thus, the cost
of compensating judges and clerks for their time is
more manageable than it might at first appear.
Second, DNA testing costs range widely, depending on the method used. On average, the costs
are surprisingly low. A representative of the Iowa
Division of Criminal Investigation said that the average test, including personnel costs, can be as low as
fifty dollars.59 The Virginia Department of Planning
and Budget estimated that each test would cost thirty-five dollars in their fiscal analysis of a proposed
post-conviction DNA testing bill.60
Most of the expense for post-conviction DNA

PROFILEs OF INJUSTICE
Kirk Bloodsworth’s Story

A

lthough no physical evidence linked him to the
crime, Kirk Noble Bloodsworth was convicted of
raping and murdering nine-year-old Dawn Hamilton
in 1985. He was sentenced to death in Maryland
and in 1993, DNA testing proved his innocence. A
decade after Bloodsworth’s exoneration, the state
attorney’s office finally compared DNA from the
victim’s clothes to DNA in state and federal databases

of convicted felons. They immediately found a match
and the real killer confessed.
Detectives William Ramsey and Robert Capel
were in charge of investigating the rape and murder.
Two boys, a ten-year-old and a seven-year-old, saw
Dawn walk into the woods with a white, tall, thin,
blonde, mustachioed man. Capel interviewed each boy
on the evening the crime occurred. Using templates


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of facial features, a severely limited and unreliable
Bloodsworth was convicted of first degree murder,
method, the ten-year-old boy helped Capel create a
sexual assault, and rape on March 8, 1985, largely due
composite of the man. The boy asked to change sevto eyewitness testimony. The judge sentenced him to
eral features, but Capel did not call in a freelance artist
death, and Bloodsworth lived on death row for more
because his office wanted to release the composite
than a year.
to the public immediately.64 When they released the
But on July 29, 1986, the Maryland Court of
sketch, the detectives were inundated with tips from
Appeals reversed Bloodsworth’s conviction, citing
people claiming to know men resembling the suspect.
the failure of the prosecution to fully comply with
Most leads were never adequately pursued, including
pretrial discovery laws. The prosecutors failed to
one linking the man in the sketch to a man wanted for
disclose information about other suspects in the case.
65
a series of rapes in the Fells Point area of Baltimore.
Bloodsworth was retried, and again convicted of the
Two weeks into their search, with public pressure
crime he did not commit. Bob Morin, the attormounting to find the assailant,
ney ultimately responsible for
Ramsey and Capel had targeted
Bloodsworth’s exoneration, said
“Did
the
system
work?
Kirk Bloodsworth. Bloodsworth
that the investigation “was not a
was a former marine with no
flawless investigation. But a lot
I was released, but only
criminal background. While he
of the flaws in the investigation
after eight years, eleven
lived near the crime scene and
all got played out in front of the
months,
and
nineteen
had left the Baltimore area shortjury, not once but twice.” 68 The
ly after the crime was commitjudge in Bloodsworth’s second
days, all that time
ted, he was shorter, stockier, and
trial sentenced him to two connot knowing whether
ruddier than the description of
secutive life sentences.
the suspect. Ramsey and Capel
Bob Morin agreed to take
I would be executed or
questioned and photographed
Bloodsworth’s case in 1989, even
whether I would spend
Bloodsworth, who maintained
though he knew it would be diffithe rest of my life in
his innocence. When detectives
cult to get another trial. In April of
presented a photo spread to the
1992, Bloodsworth, who worked
prison. My life had
two boys, the ten-year-old idenin the prison library and had read
been taken from me
tified Bloodsworth, but said that
about DNA testing used to solve
Bloodsworth had more red in his
crimes in England, urged Morin
and destroyed.”
hair than the man he saw with
to have the evidence from the
—Kirk Bloodsworth
Dawn Hamilton. The sevencrime scene tested. Although the
year-old did not identify any of
physical evidence could have been
the men.66 The identification by the ten-year-old
legally destroyed after Bloodsworth’s conviction, the
witness was enough for Bloodsworth to be arrested
judge from Bloodsworth’s second trial had kept some
and brought to trial in February of 1985.
of the evidence in a cardboard box in his chambers.69
Despite extensive investigation, no physical eviMorin sent the evidence to a highly renowned DNA
dence tied Bloodsworth to the crime.
scientist and paid for the test out of his own pocket.70
The FBI also tested the rape kit from the crime.
In April of 1993, DNA testing proved that the
Although the medical examiner performing the autopsemen on Dawn Hamilton’s underwear did not come
sy identified spermatozoa on the cotton swabs, the
from Kirk Bloodsworth. Morin informed the state
FBI forensic laboratory determined that no semen was
attorney’s office of the test results, but the prosecupresent. The FBI’s serology expert made markings on
tors insisted on performing their own DNA test to
the victim’s underwear circling and pointing to variconfirm the results. Bloodsworth spent two additionous stains, but he was unable to detect any semen on
al months in prison waiting for the state’s results.
the underwear or shorts. One of the markings on the
Bloodsworth was released on June 28, 1993, after
underwear, a black arrow, pointed directly to the stain
spending nearly nine years in prison. Even after his
that exonerated Bloodsworth nine years later.67
release, the state attorney’s office did not apologize
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or acknowledge Bloodsworth’s innocence. Sandra A.
DNA Testing Program, authorizes twenty-five milO’Connor, Baltimore County State’s Attorney, told
lion dollars over five years to help states pay the costs
reporters: “I’m not prepared to say he’s innocent. Only
of post-conviction DNA testing.
the people who were there know what happened.” 71
As part of his testimony before the Senate, Kirk
The state’s reservations about Bloodsworth’s
Bloodsworth gave voice to the grief that comes from
innocence lingered an additional ten years, until
wrongful conviction:
September 2003. Although Maryland State Police had
“Did the system work? I was released, but
established a state database containing DNA samples
only after eight years, eleven months, and
of convicted felons from both state and federal records
nineteen days, all that time not knowing
in 1994, the Baltimore County
whether I would be executed
state’s attorney’s office failed
or whether I would spend
Morin informed the
to submit the data from Dawn
the rest of my life in prisHamilton’s case despite preson. My life had been taken
state attorney’s office of
sure from Kirk Bloodsworth and
from me and destroyed. I
the
test
results,
but
the
72
the public. When they finally
was separated from my famprosecutors insisted on
did, nearly twenty years after
ily and branded the worst
the crime and ten years after
thing possible—a child killperforming their own
Bloodsworth’s exoneration, they
er. I cannot put into words
DNA
test
to
confirm
found a match. The real killer,
what it is like to live under
Kimberly Ruffner, confessed
these circumstances… Did
the results. Bloodsworth
and pled guilty to the crime.
the system work? My family
spent two additional
Ruffner had been convicted
lived through this nightmare
months
in
prison
waiting
of the attempted rape and stabwith me. My father spent his
bing of a woman in the Fells
entire retirement savings. As
for the state’s results.
Point area of Baltimore in the
a result, he cannot retire and
summer of 1984. He was also
must work on and on. My
one of Kirk Bloodsworth’s fellow inmates in the
mother, whom I loved and stood up for me—
Maryland prison system. Ann Brobst, the attorney
stood right beside me the entire time—died
who had prosecuted Bloodsworth in both trials,
before I was released. …I was not allowed to
delivered the news to Bloodsworth.
go to her funeral.” 73
In 2000, Senator Patrick Leahy of Vermont
Kirk Bloodsworth now works as a program offiinvited Kirk Bloodsworth to speak before the Senate
cer for The Justice Project, and spends his time travabout the Innocence Protection Act (IPA). Part of
eling around the country speaking about the need for
the IPA, the Kirk Bloodsworth Post-Conviction
expanded post-conviction DNA testing.

Clarence Elkins’ Story

C

larence Elkins served seven years of a life sentence for a crime he did not commit. In spite
of exculpatory post-conviction DNA tests, the court
denied his motion for a new trial. Elkins was finally
exonerated after he mailed a cigarette butt from a
fellow prisoner to his lawyer. The DNA from the
cigarette matched DNA found on both victims.
In June 1998, an intruder raped Clarence Elkins’
six-year-old niece, Brooke Sutton, and raped and

murdered her grandmother (Elkins’ mother-in-law),
Judith Johnson. When Sutton regained consciousness
hours after the crime, she ran to a neighbor’s house for
help. The neighbor, Tonia Brasiel, who later became
part of the investigation, was slow to respond, leaving
the traumatized child out on her porch before driving
her home. Despite the child’s report of the murder,
Brasiel failed to call the police or an ambulance.74
When Elkins’ niece finally did speak to investigators,
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she identified the murderer as “Uncle Clarence.”
confirmed that Elkins’ DNA was not found in any of
Detectives collected strands of hair from the
the material tested.
crime scene, but DNA testing proved that the hairs
In March 2005, Elkins and the Ohio Innocence
were not from Elkins. Vaginal swabs from Johnson
Project were granted a hearing on their request for a
and traces of DNA from Sutton’s underwear also
new trial based on the new DNA evidence. Michael
failed to link Elkins to the crime.
Carroll, the Summit County assistant prosecutor, told
Sutton’s eyewitness testimony was enough for
reporters that “the public sentiment is that [the DNA
investigators to pursue Clarence Elkins. Four days
evidence] is significant, but I don’t think it is. So, I think
after the attack, he was arrested and charged with
it’s best we have a hearing and just air things out.” 78
murder, attempted aggravated murder, rape, and feloIn spite of the exculpatory DNA test results, in July
nious assault. In May 1999, Elkins stood trial with the
2005 the court denied Elkins’ motion for a new trial.
possibility of receiving the death penalty.
Martin Yant and Melinda Elkins had developed
Due to the lack of any physical evidence connectsuspicions about another man who was eventuing Clarence Elkins to the crime,
ally charged with the crime: Earl
prosecutors relied heavily upon
Gene Mann.
Detectives collected
the testimony of Elkins’ young
At the time of the crime,
niece. Elkins’ attorney, Lawrence
Mann was living with Tonia
strands of hair from the
Whitney, contended that nineBrasiel, the neighbor to whom
crime
scene,
but
DNA
teen witnesses placed Elkins an
Elkins’ niece fled for help. And in
testing proved that the
hour away from the crime on the
May 2002, Earl Mann was senevening of the murder. The jury
tenced to prison for raping his and
hairs were not from
was not convinced, and on June
Brasiel’s three daughters. Melinda
Elkins.
Vaginal
swabs
4, 1999, Elkins was convicted. He
Elkins wondered if Brasiel’s odd
was sentenced to life in prison.
response to Brooke Sutton’s plea
from Johnson and
Melinda Elkins, whose belief in her
for help on the morning after the
traces of DNA from
husband’s innocence estranged her
crime was due to her boyfriend’s
Sutton’s
underwear
from her sister and her niece, told
involvement in the murder;
reporters, “It was a triple tragedy for
Melinda suspected that Brasiel
also failed to link Elkins
me. I lost my mother, my husband,
had even coached the six-year-old
to the crime.
and my sister in one instance.” 75
victim to name “Uncle Clarence”
In 2002, Elkins and his attoras her attacker.79
neys filed a motion for a new trial. Brooke Sutton,
In order to prove that he committed the crime,
Elkins’ niece, had recanted her testimony. The court
Melinda Elkins needed a DNA sample from Mann.
denied Elkins’ motion for a new trial, Elkins appealed,
She even “sent some letters to Earl Mann under a
and in 2003, the state upheld the denial for a new
fictitious name as a pen pal, hoping he would write
trial, claiming that Sutton’s initial testimony was more
back to me. I had even included the envelopes,” 80
76
credible than her recantation.
which she hoped Mann would lick, leaving DNA
With the help of Martin Yant, a private investigatraces. He never responded. The state of Ohio had
tor who specializes in wrongful convictions, Melinda
Mann’s DNA profile in its massive database, but laws
Elkins continued to investigate the case. When nationprohibited her from accessing it.81
al news media directed its attention to her cause, indiClarence Elkins had moral qualms about going to
viduals moved by her story donated tens of thousands
extreme lengths to take DNA from Mann: “I didn’t
of dollars to help pay for DNA testing.77
want to point any fingers like those that had been
In 2004, the Ohio Innocence Project sent evipointed at me.” 82 But one day in the summer of 2005,
dence from the crime scene, including a vaginal swab
Elkins saw fellow inmate Mann flick away his cigafrom the rape kit, hair and skin cells from underneath
rette butt. Elkins kept the butt inside his Strong’sBible
Johnson’s fingernails, and DNA from Sutton’s nightConcordance and mailed the evidence to his attorney in
gown, to a laboratory for DNA testing. The results
a plastic bag.83
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The suspicions of Melinda Elkins were confirmed
when test results identified Mann’s DNA as the same
as that found on the victim. Still, the Summit County
Prosecutor’s Office was not interested in hearing
about the case. This led Mark Godsey, co-founder
of the Ohio Innocence Project, to ask state Attorney
General Jim Petro to help. Petro took the unusual step
of intervening via press conference, where he urged
the county to release Elkins in time for Christmas.84
Petro told reporters: “Our experience with Summit

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County is they didn’t really know what DNA meant.
They didn’t think of it as conclusive as we did. And I
was kind of surprised at that.”85
Elkins was released on December 15, 2005. In
March of the following year, he agreed to accept a
little over one million dollars from the state as compensation for his wrongful conviction.86
Earl Mann pled not guilty, although two DNA
tests showing that the chances that someone else
committed the murder are nineteen million to one.

SNAPSHOTS OF SUCCESS
or her conviction, or until October 1, 2003 (whichever was later) to submit a petition for DNA testing.
Evidence preservation standards were subject to the
same statute of limitations. In September 2003, as the
filing deadline approached, the Florida Bar issued an
emergency request to the Florida Supreme Court asking for a one-year extension. The Court extended the
deadline, and on May 20, 2004, the Florida Legislature
passed a bill to amend the statute giving defendants
four years after a conviction, or until October 1, 2005
(whichever was later) to petition for testing.
But as the 2005 deadline approached, defense
lawyers and petitioners were once again rushing to
submit motions for DNA testing. The Miami Herald
interviewed Senator Alex Villalobos, the Republican
who sponsored the original DNA testing law: “‘I
don’t want to just extend the deadline for two years
again. We’ll just be back here again in two years.’ In
the past, opponents of testing in old cases have argued
that leaving the window open robs victims and their
families of finality. Villalobos, a former prosecutor,
disagrees. ‘If I’m a victim or the family member of a
victim, I don’t have finality if the wrong person is in
prison. That’s not justice for anyone.’” 88
On August 8, 2005, Governor Jeb Bush issued
an executive order to prevent evidence custodians
from destroying evidence that could contain DNA
material. Unfortunately, the order allowed disposal
of evidence if defendants failed to request testing
within ninety days after the state sent written notices
of pending destruction to defendants, their lawyers,
prosecutors and the attorney general.

CALIFORNIA
In September of 2000, the California State Senate
and Assembly unanimously passed, and Governor
Gray Davis signed into law, a model post-conviction
DNA testing statute. The law requires the state to
preserve DNA evidence for the duration of a defendant’s time in prison. The petition for post-conviction
DNA testing is considered regardless of the initial
plea before trial, and the law stipulates that the testing
should be performed at a laboratory that is “mutually
agreed upon” by the district attorney and the petitioner. Finally, indigent defendants can request legal
counsel, and the court may provide state-funded tests
when the defendant cannot afford them.
California’s statute was only the seventh in the
United States providing for post-conviction DNA
testing. At the time of the law’s passage, most states
with post-conviction DNA testing statutes limited the
opportunity to petition to defendants on death row.
California’s law allows anyone convicted of a felony to
petition. Furthermore, the language used to determine
the standard is appropriately broad: a successful petition for DNA testing would “raise a reasonable probability that the convicted person’s verdict or sentence
would be more favorable if the results of DNA testing
had been available at the time of conviction.” 87
FLORIDA
Florida’s post-conviction DNA testing statute
passed in 2001, after two separate high-profile exonerations. The law included a strict statute of limitations:
a defendant only had two years from the date of his
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Finally, on June 23, 2006, Governor Bush approved
the Legislature’s amendment to the post-conviction
DNA testing law. The amended law imposes no time
limitations for petitioners, and requires preservation
of evidence throughout a defendant’s sentence. The
law includes other model provisions: defendants may
petition for testing regardless of their initial plea, and
the state appoints counsel and pays for DNA testing
if the applicant is indigent.

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cence of a criminal defendant. In other cases,
DNA may not conclusively establish guilt or
innocence but may have significant probative value to a finder of fact. DNA evidence
produced even decades after a conviction can
provide a more reliable basis for establishing
a correct verdict than any evidence proffered
at the original trial. DNA testing responds to
serious concerns regarding wrongful convictions, especially those arising out of mistaken
eyewitness identification testimony; and there
is a compelling need to ensure the preservation of biological material for post-conviction
DNA testing…” 89
The bill’s sponsor, Senator Ernie Chambers, introduced another bill into the Nebraska Legislature on
May 21, 2007 to express “support of all efforts to
learn from DNA exonerations to increase the accuracy
and reliability of criminal investigations, strengthen
prosecutions, protect the innocent, and enhance public safety.” 90 The bill was adopted on May 31, 2007.
Nebraska’s statute does contain one major flaw: DNA
evidence must only be preserved once a defendant petitions for testing. Nebraska could improve its statute by
requiring all DNA-testable evidence to be preserved
for all inmates for the duration of their sentences.

NEBRASKA
In 2001, Nebraska passed legislation allowing
any person in state custody to petition for postconviction DNA testing. Nebraska’s law places no
statute of limitations on petitioners. The court must
appoint counsel for indigent petitioners, and the cost
of DNA testing may also be provided by the state.
Furthermore, evidence that could be used for DNA
analysis must be preserved upon request for testing.
The bill includes model language establishing the
importance of post-conviction DNA testing:
“Over the past decade, DNA testing has
emerged as the most reliable forensic technique… Because of its scientific precision
and reliability, DNA testing can, in some
cases, conclusively establish the guilt or inno-

VOICES OF SUPPORT
“Post-conviction DNA testing is an essential safeguard that can save innocent lives when the trial
process has failed to uncover the truth. But it would
be neither just nor sensible to enact a law that merely
expanded access to DNA testing. It would not be just
because innocent people should not have to wait for
years after trial to be exonerated and freed. It would
not be sensible because society should not have to
wait for years to know the truth. When innocent
people are convicted and the guilty are permitted to
walk free, any meaningful reform effort must consider
the root causes of these wrongful convictions and take
steps to address them.”91

“Advanced DNA testing improves the just and fair
implementation of the death penalty. …[I]t is indisputable that advanced DNA testing lends support and credibility to the accuracy and integrity of capital verdicts.
…All Americans—supporters and opponents of the
death penalty alike—should recognize that DNA testing
provides a powerful safeguard in capital cases. We should
be thankful for this amazing technological development.
I believe that post-conviction DNA testing should be
allowed in any case in which the testing has the potential
to exonerate the defendant of the crime.”92
Orrin Hatch
Senior United States Senator from Utah
United States Senate Committee on the Judiciary,
June 13, 2000

Patrick Leahy
Senior United States Senator from Vermont
United States Senate, November 19, 2004
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“In America, we must make doubly sure no person is
held to account for a crime he or she did not commit,
so we are dramatically expanding the use of DNA
evidence to prevent wrongful conviction.”93

“Using DNA technology fairly and judiciously in postconviction proceedings will help those of us responsible
for the administration of justice do all we can to ensure
a fair process and a just result.”98

George W. Bush
President of the United States
State of the Union, February 2, 2005

Janet Reno
Former Attorney General of the United States
Post-Conviction DNA Testing: Recommendations
for Handling Requests, 1999

“Nobody should have to wait for justice. …I struggled
for nearly twenty years to clear my name. This legislation [The Innocence Protection Act] will prevent
innocent people from ending up on death row, and it
will ensure that the truly guilty are caught.”94

“What should govern on these questions is not legal
precedent, not factual loopholes, but the fundamental
obligation of everyone in the criminal justice system to
ensure that only the factually guilty suffer in prison.”99

Kirk Bloodsworth
The first death row inmate exonerated by DNA evidence
The Washington Post, September 10, 2004

Peter Neufeld
Co-Founder of The Innocence Project
Actual Innocence, 2001

“If I’m a victim or the family member of a victim, I don’t
have finality if the wrong person is in prison. That’s not
justice for anyone.”95

“The [Massachusetts] DA’s office has recognized the
importance, both morally and ethically, of providing
a defendant some kind of meaningful access to DNA
technology that could serve to exonerate him—especially when the government now relies on that very
science to convict him.”100

J. Alex Villalobos
Florida State Senator
Miami Herald, August 7, 2005

Mark T. Lee
Asst. District Attorney, Suffolk County,
Massachusetts
New England Law Review, Spring 2001

“Our system of justice . . . is capable of producing
erroneous determinations of both guilt and innocence.
A right of access to evidence for tests which . . . could
prove beyond any doubt that the individual in fact did
not commit the crime, is constitutionally required, I
believe, as a matter of basic fairness.”96

“The Constitution requires that criminal defendants be
provided with a fair trial, not merely a ‘good faith’ try at
a fair trial.”101

Hon. J. Michael Luttig
4th U.S. Circuit Court of Appeals
The Washington Post, March 29, 2002

Justice Harry Blackmun
United States Supreme Court
Arizona v. Youngblood, November 29, 1988

“Prosecutors have nothing to lose—unless they put
their pride before their professionalism—in allowing
post-conviction DNA requests to go forward. If the
DNA test proves the defendant is guilty, then all doubts
will be resolved. If it exonerates the defendant, then
there is an opportunity to correct a tragic mistake and
begin the search for the real criminal.”97

“[Youngblood] is the Dred Scott decision of modern
times.”102
Dr. Edward T. Blake
DNA scientist, Forensic Science Associates
Denver Post, July 22, 2007

William Sessions
Former Director of the FBI and former prosecutor
The Washington Post, September 21, 2003
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Questions & Answers
will be able to escape the extremes of an interrogation
and then prove their innocence at trial.
Take for example the case of Jeff Deskovic, who
falsely confessed to murder, rape, and possession of
a weapon. Deskovic, then sixteen years old, believed
that by telling interrogators what they wanted to hear
he would not be jailed. Jurors believed his false confession despite DNA evidence presented at trial that
proved he was not guilty. Deskovic spent fifteen years
in prison for a crime he did not commit before subsequent DNA tests matched the murder to another man
already serving time in prison for murder.105
Given the relatively low cost of DNA testing,
there is no compelling reason to deny testing, regardless of a defendant’s pre-trial plea or confession.

Once a statute is enacted, will the judiciary be
flooded with petitions for DNA testing?
This has not been the case in states with post-conviction DNA testing laws. For example, New York,
which has quite liberal standards for post-conviction
DNA testing, only received a total of one-hundred
applications during the first seven years that its statutes were in effect.103 Furthermore, a number of
different factors—the length of time evidence is preserved, and which defendants are eligible for testing,
to name just two—could lead to different results. By
and large, states with post-conviction DNA testing
statutes did not experience an overwhelming deluge
of applications after the passage of these laws. While
there should be an initial increase in applications, the
increasingly widespread use of pre-trial DNA analysis
will likely contribute to a tapering off of demand after
the initial backlog of cases is processed.

Will the cost of DNA testing be too
burdensome for states to achieve?
The cost of a DNA test can be as little as thirty-five
dollars, and even the most expensive testing still costs
less than housing an inmate in prison for a year.106 It’s
the cost of storing evidence that contributes most of
the related expenditure, and this cost can vary widely
from state to state, depending on the state’s size as well
as how advanced its current evidence storage system
is. California estimated it would cost about one million dollars a year, but Texas said it would not pose a
“significant fiscal impact.” 107

Will post-conviction DNA testing undermine
the finality of our legal system?
Finality does offer closure to victims of a crime
and the victims’ families. Still, the benefits to justice
that post-conviction DNA tests bring are too great to
ignore. DNA testing also has the benefit of increasing
finality by adding a degree of certainty to the judicial
process. Florida State Senator J. Alex Villalobos, a former prosecutor, argues that “If I’m a victim or the family member of a victim, I don’t have finality if the wrong
person is in prison. That’s not justice for anyone.104

Is it necessary for defendants sentenced
today, whose forensic evidence has already
been tested, to be able to perform more DNA
testing during their sentence?
The number of samples analyzed should certainly
decrease in the coming years, but because technology
is constantly advancing, evidence that could not be
previously tested can now be analyzed, and evidence
that could not reveal conclusive results can often
now exonerate or further inculpate the defendant.108
Likewise, some exonerees (such as the above mentioned Jeff Deskovic) were wrongfully convicted on
other grounds despite the presence of exculpatory
DNA evidence at trial. We should plan for future
technological breakthroughs or positive matches to
other persons on DNA databases now, ensuring that
when DNA technology improves, we are prepared to
accommodate its impact.

Why should defendants who plead guilty or
confessed to a crime be allowed access to
DNA testing?
Documented false confessions leading to wrongful convictions occur more than anyone suspected
prior to DNA testing. Likewise, nearly a dozen of
the over two-hundred DNA exonerees pled guilty to
crimes we now know that they did not commit.
While it might be difficult to accept that an innocent person might confess to a crime they did not
commit, many of the reasons are well known. Intense
and often extreme pressure from police interrogators,
youth and vulnerability, and mental illness or handicap all leave an innocent suspect likely to confess to a
crime they have not committed. Often, innocent suspects will believe that by confessing to a crime, they
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A MODEL POLICY
An Act Concerning
Post-conviction DNA Testing 109
I. Purpose
The purpose of this Act is to ensure that the innocent are protected by providing postconviction DNA testing as a means of exonerating the wrongfully convicted. Because
post-conviction DNA testing is a scientifically reliable method of proving a wrongfully
convicted person’s innocence: all biological evidence related to a defendant’s criminal case
should be preserved; a defendant should have the right to petition for post-conviction
DNA testing; courts should have procedures in place to oversee the petitioning process and
order testing; counsel should be provided to indigent defendants throughout the petitioning process; discovery related to the testing of biological evidence should be disclosed; and
a Task Force should be established to devise standards regarding the proper collection and
retention of biological evidence.
II. Scope
These standards should be applied in all criminal cases where biological evidence exists.
III. Definitions
	
A. When used in this Act, “biological evidence” means the contents of a sexual
assault examination kit; and/or any item that could contain blood, semen,
hair, saliva, skin tissue, or other identifiable biological material from a victim
of the offense that was the subject of the criminal investigation or may
reasonably be used to incriminate or exculpate any person for the offense.
This definition applies whether that material is catalogued separately
(e.g., on a slide, swab, or in a test tube) or is present on other evidence
(including, but not limited to, clothing, ligatures, bedding or other household
material, drinking cups, cigarettes, etc.).
	
B. When used in this Act, “DNA” means deoxyribonucleic acid.
	
C. When used in this Act, “custody” means actual custody of a person under a
sentence of imprisonment, custody of a probationer, parolee, or person on
extended supervision by the department of corrections, actual or constructive
custody of a person pursuant to a dispositional order, in institutional care, on
conditional release, or on supervised release pursuant to a commitment order.
	
D. When used in this Act, “profile” means a unique identifier of an individual,
derived from DNA.
	
E. When used in this Act, “state” refers to any governmental or public entity
within [State] (including all entities within any city, county, or other locality)
and its officials or employees, including but not limited to law enforcement
agencies, prosecutors’ offices, courts, public hospitals, crime laboratories, and
any other entity or individual charged with the collection, storage, and/or
retrieval of biological evidence.

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IV. Petition for Post-Conviction DNA Testing
Notwithstanding any other provisions of law governing post-conviction relief, a person
convicted of a crime and who asserts he did not commit that crime may at any time file a
petition requesting forensic DNA testing of any biological evidence secured in relation to
the investigation or prosecution attendant to the conviction. Persons eligible for testing
include the following:
	
A. Persons currently incarcerated, serving a sentence of probation, or who have
already been released on parole;
	
B. Persons convicted on a plea of not guilty, guilty (including “Alford” pleas), or
nolo contendere; or
	
C. Persons who have finished serving their sentences.
V. Proceedings
The petitioner shall be granted full, fair, and prompt proceedings upon the filing of a
motion under this Act. The petitioner shall serve a copy of such a motion upon the attorney
for the state. The state shall file its response to the motion within thirty days of the receipt
of service. The court shall hear the motion no sooner than thirty and no later than ninety
days after its filing. Once the court hears the motion, and if the court grants the petitioner’s
request, testing should be performed as soon as is practicable.
VI. Order for Post-Conviction Testing
The court shall order testing upon the filing of a motion for post-conviction DNA testing,
but only after the court provides the state with notice and an opportunity to respond and it
holds a hearing on the motion in which it finds:
	
A. A reasonable probability that DNA evidence is materially relevant to a claim
of innocence or reduced culpability;
	
B. One or more of the item(s) of evidence that the petitioner seeks to have tested
still exists;
	
C. The evidence to be tested was secured in relation to the offense underlying
the challenged conviction and:
		
1. Was not previously subjected to DNA testing; or
		
2. Was previously subjected to DNA testing and can now be subjected
to additional testing using new methods or technologies
	
D. DNA testing that provides a reasonable likelihood of more probative results; and
	
E. The chain of custody of the evidence to be tested establishes that the evidence
has not been tampered with, replaced, or altered in any material respect or, if
the chain of custody does not establish the integrity of the evidence, the testing itself has the potential to establish the integrity of the evidence. For purposes of this Act, evidence that has been in the custody of law enforcement,
other government officials, or a public or private hospital shall be presumed
to satisfy the chain-of-custody requirement of this subsection, absent specific
evidence of material tampering, replacement, or alteration; and
	
F. The application for testing is made to demonstrate innocence or the appropriateness of a lesser sentence and not solely to unreasonably delay the execution
of sentence or the administration of justice.
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VII. Order for Post-Conviction Comparison of Crime Scene Evidence to Forensic
DNA Databases
Upon motion by a petitioner, and after the state has been provided with notice and an
opportunity to respond and a hearing is held;
	
A. If the court determines any of the following to be materially relevant to a
claim of innocence or a reduction in sentence:
		
1. The State and/or National DNA Index System,
		
2. Other suspects in the case, and
		
3. Evidence from other cases
			
a. Is materially relevant to a claim of innocence;
			
b. Or a match between the crime scene evidence and any
DNA from items 1-3 may lead to a lesser sentence;
	
B. The court shall order that the state crime laboratory:
		
1. Generate a DNA profile from specified crime scene evidence, and
compare the generated DNA profile to:
			
a. Profiles in the [State] Designated Offender DNA Database
(or other appropriate state name of offender database);
			
b. [State] crime scene evidence database;
			
c. The National DNA Index System;
			
d. DNA samples from other suspects in the case; and
			
e. DNA evidence from other cases; and
		
2. Promptly report back to the court the results of all such DNA
comparisons.
VIII. Counsel
The court may appoint counsel for an indigent petitioner at any time during proceedings
under this Act.
	
A. If the petitioner has filed pro se, the court shall appoint counsel for the petitioner upon a showing that DNA testing may be material to the petitioner’s
claim of wrongful conviction.
	
B. The court, in its discretion, may refer pro se requests for DNA testing to
qualified parties for further review, without appointing the parties as counsel
at that time. Such qualified parties may include, but shall not be limited to,
indigent defense organizations or clinical legal education programs.
	
C. If the petitioner has retained private pro bono counsel that may include, but
shall not be limited to, counsel from a nonprofit organization that represents
indigent persons, the court may, in its discretion, award reasonable attorney’s
fees and costs at the conclusion of litigation.
	
D. Counsel must be appointed no later than forty-five days after the date the
court finds reasonable grounds or the date the court determines that the person is indigent, whichever is later.
IX. Discovery
	
A. At any time after a petition has been filed under this Act, the court may order:
		
1. The state to locate and provide the petitioner with any documents,
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notes, logs, or reports relating to items of physical evidence collected in connection with the case or otherwise assist the petitioner
in locating items of biological evidence that the state contends have
been lost or destroyed;
		
2. The state to take reasonable measures to locate biological evidence
that may be in its custody;
		
3. The state to assist the petitioner in locating evidence that may be in
the custody of a public or private hospital, public or private laboratory, or other facility; and/or
		
4. The production of laboratory reports prepared in connection with
the DNA testing, as well as the underlying data and the laboratory
notes, if evidence had previously been subjected to DNA testing.
	
B. If the prosecution or the petitioner previously conducted any DNA or other
biological evidence testing without knowledge of the other party, such testing
shall be revealed in the motion for testing or response.
	
C. If the court orders new post-conviction DNA testing in connection with a
proceeding brought under this Act, the court shall order the production of
any laboratory reports prepared in connection with the DNA testing. The
court may, in its discretion, also order production of the underlying data,
bench notes, or other laboratory notes.
	
D. The results of any post-conviction DNA testing conducted under this Act
shall be disclosed to the prosecution, the petitioner, and the court.
	
E. Upon receipt of a motion for post-conviction DNA testing, the state shall
prepare an inventory of the evidence related to the case and issue a copy of
the inventory to the prosecution, the petitioner, and the court.
X. Choice of Laboratory
	
A. If the court orders DNA testing, such testing shall be conducted by a facility mutually agreed upon by the petitioner and the state and approved by
the court.
	
B. If the parties cannot agree, the court shall designate the testing facility after
providing parties with a reasonable opportunity to show cause for the court to
allow testing to be performed at their preferred facility.
	
C. The court shall impose reasonable conditions on the testing to protect the
parties’ interests in the integrity of the evidence and the testing process.
XI. Payment
	
A. If a state or county crime laboratory conducts post-conviction DNA testing
under this Act, the state shall bear the costs of such testing.
	
B. If testing is performed at a private laboratory, the court may require either the
petitioner or the state to pay for the testing if cause be shown by the defense
and as the interests of justice require.
	
C. If the state or county crime laboratory does not have the ability or resources
to conduct the type of DNA testing to be performed, the state shall bear the
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ally agreeable to the petitioner and to the state.
D. If, under the above subsection (C), parties are not able to agree on a laboratory, then the court shall designate the testing facility and provide parties
with a reasonable opportunity to show cause for the court to pay for testing
at their preferred facility.

XII. Appeal
The petitioner shall have the right to appeal a decision denying post-conviction
DNA testing.
XIII. Successive Petitions
	
A. If the petitioner has filed a prior petition for DNA testing under this Act or
any other provision of law, the petitioner may file and the court shall adjudicate a successive petition or petitions under this Act, provided the petitioner
asserts new or different grounds for relief, including, but not limited to, factual, scientific, or legal arguments not previously presented, or the availability
of more advanced DNA technology.
	
B. The court may also, in its discretion, adjudicate any successive petition if the
interests of justice so require.
XIV. Additional Orders
	
A. The court may in its discretion make such other orders as may be appropriate.
This includes, but is not limited to, designating:
		
1. The type of DNA analysis to be used;
		
2. The testing procedures to be followed;
		
3. The preservation of some portion of the sample for testing
replication;
		
4. Additional DNA testing, if the results of the initial testing are
inconclusive or otherwise merit additional scientific analysis; and/or
		
5. The collection and DNA testing of elimination samples from third
parties.
	
B. DNA profile information from biological samples taken from any person
pursuant to a motion for post-conviction DNA testing shall be exempt from
any law requiring disclosure of information to the public.
XV. Procedure Following Test Results
	
A. If the results of forensic DNA testing ordered under this Act are favorable to
the petitioner, the court shall schedule a hearing to determine the appropriate relief to be granted. Based on the results of the testing and any evidence
or other matter presented at the hearing, the court shall thereafter enter any
order that serves the interests of justice, including any of the following:
		
1. An order setting aside or vacating the petitioner’s judgment of
conviction, judgment of not guilty by reason of mental disease or
defect, or adjudication of delinquency;
		
2. An order granting the petitioner a new trial or fact-finding hearing;
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3. An order granting the petitioner a new sentencing hearing, commitment hearing, or dispositional hearing;
		
4. An order discharging the petitioner from custody;
		
5. An order specifying the disposition of any evidence that remains
after the completion of the testing;
		
6. An order granting the petitioner additional discovery on matters
related to DNA test results or the conviction or sentence under attack,
including, but not limited to, documents pertaining to the original
criminal investigation or the identities of other suspects; and/or
		
7. An order directing the state to place any unidentified DNA
profile(s) obtained from post-conviction DNA testing into state
and/or federal databases.
	
B. If the results of the tests are not favorable to the petitioner, the court:
		
1. Shall dismiss the petition; and
		
2. May make any further orders that are appropriate, including those
that:
			
a. Provide that the parole board or a probation department
be notified of the test results;
			
b. Request that the petitioner’s DNA profile be added to
the state’s convicted offender database;
			
c. Provide that the victims be notified of both the application for DNA testing and the results.
XVI. Consent
	
A. Nothing in this Act shall prohibit a convicted person and the state from
consenting to and conducting post-conviction DNA testing by agreement of the
parties, without filing a motion for post-conviction DNA testing under this Act.
	
B. Notwithstanding any other provision of law governing post-conviction relief,
if DNA test results are obtained under testing conducted upon consent of the
parties which are favorable to the petitioner, the petitioner may file and the
court shall adjudicate, a motion for post-conviction relief based on the DNA
test results under section XV of this Act.
XVII. Standards and Training of Evidence Custodians
	
A. From appropriations made for that purpose, a statewide Task Force comprised of members appointed by the Governor; the Attorney General;
the state’s District and County Attorneys Association; the state’s Criminal
Defense Lawyers Association; the state’s Bar Association; the Judiciary/
Criminal Justice Committee of the [State] Senate; the Judiciary/Criminal
Justice Committee of the [State] House of Representatives; the Chief Justice
of the Supreme Court; the chancellor of the State University system; the
[state] property clerk’s association; and the State Police, shall devise standards
regarding the proper collection and retention of biological evidence; and
	
B. The Division of Criminal Justice Services shall administer and conduct training programs for law enforcement officers and other relevant employees that
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are charged with preserving biological evidence regarding the methods and
procedures referenced in this Act.
XVIII. Preservation of Evidence
	
A. Notwithstanding any other provision of law, every appropriate governmental
entity shall retain each item of physical evidence that may contain biological
material secured in connection with a criminal case in the amount and manner sufficient to develop a DNA profile from the biological material contained in or included on the evidence for the period of time that any person
connected to that case, including any co-defendant(s) convicted of the same
crime, remains incarcerated, on probation or parole, civilly committed, or
subject to registration as a sex offender.
	
B. This Act applies to evidence that:
		
1. Was in the possession of the state during the investigation and
prosecution of the case; and
		
2. At the time of conviction was likely to contain biological material.
	
C. This requirement shall apply with or without the filing of a petition for postconviction DNA testing, and to pleas of not guilty, guilty (including “Alford”
pleas), or nolo contendere.
	
D. In cases where a petition for post-conviction DNA testing has been filed
under this Act, the state shall prepare an inventory of the evidence related to
the case and submit a copy of the inventory to the petitioner and the court.
		
1. If evidence is intentionally destroyed after the filing of a petition
under this Act, the court may impose appropriate sanctions on the
responsible party or parties.
		
2. If the court finds that evidence was intentionally destroyed in violation of the provisions of this statute, it shall consider appropriate
remedies.
		
3. If the court determines that evidence was destroyed in violation of
any of the provisions of this statute, the court may impose appropriate sanctions and/or remedies for noncompliance such as contempt, granting a new trial, dismissal of charges, and/or sentence
reduction or modification.
	
E. Should the state be called upon to produce biological evidence that could
not be located and whose preservation was required under the provisions of
this statute, the evidence custodian assigned to the entity charged with the
preservation of said evidence shall provide an affidavit in which he describes,
under penalty of perjury, the efforts taken to locate that evidence and that the
evidence could not be located.
XIX. Development of Centralized Tracking System
The statewide Task Force shall also make recommendations for a statewide centralized tracking
system for all biological evidence in the state’s possession. The system shall allow evidence connected to both open cases and post-conviction DNA testing cases to be located expeditiously.

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STATISTICS

A

s of June 2008, over two-hundred people have
been exonerated with DNA evidence. The first
in-depth study of the first two hundred individuals
exonerated by DNA testing found that “[m]ore than
one quarter of all post-conviction DNA exonerations
(fifty-three) occurred in cases where DNA was available at the time of the criminal trial” (after 1990).110
Reasons for these wrongful convictions include
advances in DNA technology since the time of trial,
forensic fraud, the failure of defense counsel to
request DNA testing, conviction despite DNA exclusion, and court denial of the DNA testing request.
The study found that “courts denied at least
twelve exonerees relief despite at least preliminary
DNA test results excluding them; each was later
exonerated after an executive or higher court grant-

ed relief. Forty-one (twenty-one percent) received a
pardon from their state executive, often because they
lacked any available judicial forum for relief.” 111
The study notes that “[t]he demographics of
the group are not representative of the prison
population, much less of the general population.” 112
It describes the group as all male save one, with
twenty-two juveniles, twelve mentally handicapped
people, one-hundred twenty-four black, and seventeen Hispanic exonerees. Seventy-three percent of
those proven innocent of rape are black or Hispanic,
while only about “thirty-seven percent of all rape
convicts are minorities.” 113
According to The Innocence Project, the real
perpetrator has been identified in eighty-two of the
first 218 DNA exoneration cases. 114

Literature
SUGGESTED READINGS

1. Journals and Law Reviews

The following materials are recommended reading for individuals interested in enhancing their
knowledge of post-conviction DNA testing.

Boemer, Jennifer. “In the Interest of Justice:
Granting Post-Conviction Deoxyribonucleic Acid
(DNA) Testing to Inmates.” William Mitchell Law
Review 27 (2001): 1971-2001.

Christian, Karen. “ ‘And the DNA Shall Set You
Free’: Issues Surrounding Post-conviction DNA
Evidence and the Pursuit of Innocence.” Ohio
State Law Journal 62 (2001): 1195-1241.
Garrett, Brandon L. “Judging Innocence.” Columbia
Law Review 108 (January 2008): 55-142.
Jones, Cynthia. “Evidence Destroyed, Innocence
Lost.” American Criminal Law Review 42 (Fall
2005): 1239-70.
Schaffter, Holly. “Post-conviction DNA Evidence:
A 500 pound Gorilla in State Courts.” Drake Law
Review 50 (2002): 695-738.
Moffeit, Miles and Susan Greene. Four-part series
on destroyed evidence. The Denver Post, July 2226, 2007.

Christian, Karen. “ ‘And the DNA Shall Set You
Free’: Issues Surrounding Post-conviction DNA
Evidence and the Pursuit of Innocence.” Ohio
State Law Journal 62 (2001): 1195-1241.
DeFoore, David. “Post-conviction DNA Testing:
A Cry for Justice from the Wrongly Convicted.”
Texas Tech Law Review 33 (2002): 491-528.
Garrett, Brandon L. “Judging Innocence.” Columbia
Law Review 108 (January 2008): 55-142.
Goldberg, Judith A. and David M. Siegel. “The
Ethical Obligations of Prosecutors in Cases
Involving Post-conviction Claims of Innocence.”
California Western Law Review 38 (Spring 2002):
389-412.

SELECTED BIBLIOGRAPHY
The following listing includes some of the key
source material used in developing the content of this
policy review. While by no means an exhaustive list of
the sources consulted, it is intended as a convenience
for those wishing to engage in further study on the
topic of post-conviction DNA testing.

Good, Andrew. “Litigating for Access to Samples
and Funding in Cases in Which DNA Results
will be Probative, but Not Dispositive of
Innocence.” New England Law Review 35 (Spring
2001): 649-655.

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Kanon, Diana L. “Will the Truth Set Them Free?
No, But the Lab Might: Statutory Responses to
Advancements in DNA Technology.” Arizona Law
Review 44 (Summer 2002): 467-94.
Kreimer, Seth F. and David Rudovsky. “Double
Helix, Double Bind: Factual Innocence and
Post-conviction DNA Testing.” University of
Pennsylvania Law Review 151 (December 2002):
547-617.
Lee, Mark. “The Impact of DNA Technology on
the Prosecutor: Handling Motions for PostConviction Relief.” New England Law Review 35
(Spring 2001): 663-67.
Meier, David. “The Prosecution’s Perspective
on Post-Conviction Relief in Light of DNA
Technology and Newly Discovered Evidence.”
New England Law Review 35 (Spring 2001):
657-61.
Neufeld, Peter. “Legal and Ethical Implications
of Post-Conviction DNA Exonerations.” New
England Law Review 35 (Spring 2001): 639-46.
Ritter, Hillary S. “It’s the Prosecution’s Story, but
They’re Not Sticking to It: Applying Harmless
Error and Judicial Estoppel to Exculpatory
Post-Conviction DNA Testing Cases.” Fordham
University Law Review 74 (November 2005):
825-70.
Ruga, Dylan. “Federal Court Adjudication of State
Prisoner Claims for Post-Conviction DNA
Testing: A Bifurcated Approach.” Pierce Law
Review 2 (March 2004): 35-55.
Saks, Michael J. et al. “Toward a Model Act for
the Prevention and Remedy of Erroneous
Convictions.” New England Law Review 35 (Spring
2001): 669-83.
Schaffter, Holly. “Post-conviction DNA Evidence:
A 500 pound Gorilla in State Courts.” Drake Law
Review 50 (2002): 695-738.
Swedlow, Kathy. “Don’t Believe Everything You
Read: A Review of Modern ‘Post-Conviction’
DNA Testing Statutes.” California Western Law
Review 38 (Spring 2002): 355-87.
Weiers, Jennifer L. and Marc R. Shapiro. “The
Innocence Protection Act: A Revised Proposal for
Capital Punishment Reform.” N.Y.U. Journal of
Legislation and Public Policy 6 (2002/2003): 615-33.

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2. Commission and Association Reports &
Policies
American Bar Association. Evaluating Fairness
and Accuracy in State Death Penalty Systems: The
Georgia Death Penalty Assessment Report. American
Bar Association, 2006.
The Library of Congress, Congressional Research
Service. The Advancing Justice Through DNA
Technology Act of 2003 (H.R. 3214): A Section-bySection Analysis, by Estela I. Pollack. Washington,
DC: GPO, 1996.
National Center for State Courts, Knowledge and
Information Services. Post-conviction DNA Testing:
Recommendations to the Judiciary from the National
Commission on the Future of DNA Evidence, by
Karen Gottlieb. National Center for State
Courts, 2000. http://www.ncsconline.org/WC/
Publications/KIS_SciEvd_Trends99-00_Pub.pdf
(accessed June 23, 2008).
U.S. Department of Justice. Convicted by Juries,
Exonerated by Science: Case Studies in the Use of
DNA Evidence to Establish Innocence After Trial,
by Edward Connors, Thomas Lundregan, Neal
Miller, and Tom McEwen. Washington, DC:
GPO, 1996.
U.S. Department of Justice, National Commission
on the Future of DNA Evidence. Post-conviction DNA Testing: Recommendations for Handling
Requests. Washington: Government Printing
Office, 1999.
3. Miscellaneous
Berger, Margaret A. “Lessons From DNA:
Restriking the Balance Between Finality and
Justice.” In DNA and the Criminal Justice System:
The Technology of Justice, edited by David Lazer,
109-31. Cambridge: MIT Press, 2004.
Bieber, Frederick R. “Science and Technology of
Forensic DNA Profiling: Current Use and Future
Directions.” In DNA and the Criminal Justice
System: The Technology of Justice, edited by David
Lazer, 23-62. Cambridge: MIT Press, 2004.
Jacobi, Tonja and Gwendolyn Carroll.
“Acknowledging Guilt: Forcing Self-Identification
in Post-Conviction DNA Testing.” Northwestern
University School of Law, Law and Economics
Research Paper Available at SSRN: http://ssrn.
com/abstract=963642 (accessed June 23, 2008).
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Endnotes
1 The

18

Innocence Protection Act of 2004, 18 U.S.C.A §§ 3600, 3600A and
42 U.S.C.A. § 14163 (West, WestLaw through 2008 Pub. L. 110-244), was
passed as part of the Justice for All Act of 2004, Pub. L. No. 108-405, 118
Stat. 2260 (codified as amended in scattered sections of 18 U.S.C.A and 42
U.S.C.A. (West, WestLaw through 2008 Pub. L. 110-244)).
2 As of June 2008, funding for this program has not yet been distributed to
states.
3 Alabama, Alaska, Massachusetts, Mississippi, South Carolina, and South
Dakota lack statutes allowing post-conviction DNA testing. Oklahoma’s
statue expired in 2005. Wyoming passed a post-conviction DNA testing law
in March of 2008 that will go into effect on July 1, 2008.
4 Solomon Moore, Exoneration Leads to Change in Legal System, N.Y. Times,
Oct. 1, 2007, at A1. See infra note 7 for states that sufficiently require preservation of evidence.
5 Idaho Code Ann. § 19-4902 (West, WestLaw through 2008 Chs. 1-410).
6 Cynthia Jones, Evidence Destroyed, Innocence Lost: The Preservation of Biological
Evidence Under Innocence Protection Statutes, 42 Am. Crim. L. Rev. 1239,
1239-40 (2005).
7 Ariz. V. Youngblood, 488 U.S. 51, 58 (1988).
8 States that require preservation of evidence throughout a person’s incarceration are California, Cal. Penal Code § 1417.9 (West, WestLaw through
2008 Ch. 31); Connecticut, Conn. Gen. Stat. Ann. §54-102jj(b) (West,
WestLaw through 2008 Supplement to the Connecticut General Statutes);
Florida, Fla. Stat. Ann. § 925.11(4)(a) (West, WestLaw through 2008
2d Reg. Sess.); Hawaii, Haw. Rev. Stat. §844D-126(a) (West, WestLaw
through 2007 3d Spec. Sess.); Maryland, Md. Code Ann., Crim. Proc.
§ 8-201(i)(2) (West, WestLaw through 2008 Reg. Sess.); Michigan, Mich.
Comp. Laws Ann. § 770.16(11) (West, WestLaw through P.A. 2008, No.
162); Minnesota, Minn. Stat. Ann. § 590.10 (West, WestLaw through 2008
Reg. Sess.); New Hampshire, N.H. Rev. Stat. Ann. § 651-D:3(II) (West,
WestLaw through 2008 Ch. 24); New Mexico, N.M. Stat. Ann. § 31-1A2(L) (West, WestLaw through laws effective May 14, 2008, 2d Reg. Sess.);
Rhode Island, R.I. Gen. Laws § 10- 9.1-11(a) (West, WestLaw through
2007 legislation); Texas, Tex. Crim. Proc. Code Ann. art. 38.43 (Vernon,
WestLaw through 2007 Reg. Sess.); Wisconsin, Wis. Stat. Ann. § 978.08(2)
(West, WestLaw through 2007 Act 24); and Washington, DC, DC Code
Ann. § 22-4134(a) (West, WestLaw through May 12, 2008).
9 Peter Neufeld, Legal and Ethical Implications of Post-Conviction DNA
Exonerations, 35 New Eng. L. Rev. 639, 641 (2001).
10 See Brandon L. Garrett, Judging Innocence, 108 Colum. L. Rev. 55, 60,
74 (2008) (providing numbers of DNA exonerees who falsely confessed and
accepted plea bargains).
11 Id. at 74; The Innocence Project, News and Information: Fact Sheets,
http://www.innocenceproject.org/Content/351.php (last visited June 19, 2008).
12 Junkin, infra note 64, at 245.
13 Frederick R. Bieber, Science and Technology of Forensic DNA Profiling:
Current Use and Future Directions, in DNA and the Criminal Justice
System 23, 28-36 (David Lazer, ed., 2004).
14 See Karen Christian, “And the DNA Shall Set you Free”: Issues Surrounding
Post-conviction DNA Evidence and the Pursuit of Innocence, 62 Ohio St. L.J.
1195, 1208-14, 1241 (2001) (discussing the inconsistency of post-conviction
DNA testing among states without statutes and the need for a consistent
approach). See also Rachel Steinback, The Fight For Post-Conviction DNA
Testing is Not Yet Over: An Analysis of the Eight Remaining “Holdout States” and
Suggestions for Strategies to Bring Vital Relief to the Wrongfully Convicted, 98 J.
Crim. L. & Criminology 329, 339-342 (discussing the problems with nonstatutory approaches to securing post-conviction DNA testing).
15 Innocence Protection Act of 2004, 18 U.S.C.A. § 3600(a)(8)(B).
16 150 Cong. Rec. S11611 (statement of Sen. Leahy).
17 Michael Bromwich, Final Report of the Independent
Investigator for the Houston Police Department Crime
Laboratory and Property Room (2007) at 114.

One recent case, reported on October 3, 2007, involves inmate Ronald
Taylor. An HPD analyst had testified at his original trial that no semen was
present at the crime scene. Recent tests, however, have shown that testimony
to be false. The semen at the scene matches the DNA of a convicted felon
already in jail. Taylor was exonerated in January 2008. Indictment Dismissed
Against Houston Man Cleared by DNA Testing, Associated Press St. & Loc.
Wire, Jan. 15, 2008, at State and Regional.
19 Justice for All Act of 2004, Pub. L. No. 108-405, § 306, 118 Stat. 2260,
2274-75 (codified as amended at 42 U.S.C.A. § 14136c (West, WestLaw
through 2008 Pub. L. 110-244)); Justice for All Act of 2004, § 302, 118 Stat.
2260, 2272-73 (codified as amended at 42 U.S.C.A. § 14132 (West, WestLaw
through 2008 Pub. L. 110-244)).
20 Forensics laboratories in Arkansas are supervised by an appointee of the
governor, while Maryland’s forensics laboratories are under the Maryland
Department of Health and Mental Hygiene. Virginia also utilizes independent laboratories. Alabama utilizes an autonomous Department of Forensic
Services, but its head is appointed by the Attorney General rather than the
governor. Ark. Code Ann. § 12-12-304 (West, WestLaw through 2008 First
Exec. Sess.); Md. Code Ann., Health-Gen § 17-2A-02 (West, WestLaw
through all chapters of 2008 Reg. Sess. effective through June 1, 2008); Va.
Code Ann. § 9.1-1100 (West, WestLaw through 2007 Reg. Sess.); and Ala.
Code § 36-18-1 (West, WestLaw through Act 2008-270).
21 N.C. Gen. Stat. Ann. § 15A-269 (e) (West, WestLaw through 2007 Reg.
& Exec. Sess.).
22 Nat’l Comm’n on the Future of DNA Evidence, U.S. Dep’t
Justice, Post-Conviction DNA Testing: Recommendations for
Handling Requests 45-50 [hereinafter Nat’l Comm’n] (2001).
23 When is Justice Served?: Hearing Before the S. Comm. on the Judiciary, 106th
Cong. 104 (2000) [hereinafter Hearing] (testimony of Barry Scheck).
24 Garrett, supra note 10, at 120.
25 Nat’l Inst. Justice, U.S. Dep’t Justice, Convicted by Juries,
Exonerated by Science: Case Studies in the Use of DNA Evidence
to Establish Innocence after Trial (1996).
26 Nat’l Comm’n, supra note 22, at 43.
27 Seth F. Kreimer and David Rudovsky, Double Helix, Double Bind: Factual
Innocence and Post-conviction DNA Testing, 151 U. Pa. L. Rev. 547, 557 (2002).
28 Christian, supra note 14, at 1228; Justice for All Act of 2004, Pub. L. No.
108-405, § 411, 118 Stat. 2260, 2278-84 (codified as amended at 18 U.S.C.A.
§§ 3600-3600a (West, WestLaw through 2008 Pub. L. 110-244)).
29 Innocence Protection Act of 2004, supra note 1.
30 Justice for All Act of 2004, Pub. L. No. 108-405, § 411, 118 Stat. 2260,
2278-84.
31 Justice for All Act of 2004 § 412, 118 Stat. at 2284-85.
32 Cal. v. Trombetta, 467 U.S. 479 (1984); Ariz. v. Youngblood, 488 U.S. 51
(1988).
33 Trombetta, 467 U.S. at 488-89.
34 Youngblood, 488 U.S. at 57-58.
35 Id. at 58.
36 Id. at 66 (Blackmun, J., dissenting).
37 Susan Greene & Miles Moffeit, Trashing the Truth: Destruction of Evidence,
Denver Post, July 22, 2007, at A1.
38 Harvey v. Horan, 278 F.3d 370, 372 (4th Cir. 2002).
39 Civil Action for Deprivation of Rights, 42 U.S.C.A. § 1983 (West,
WestLaw through 2008 Pub. L. 110-244).
40 Harvey, 278 F.3d at 376.
41 Id.
42 Dabbs v. Vergari, 570 N.Y.S.2d 765, 767 (1990).
43 Id.
44 People v. Dabbs, 587 N.Y.S.2d 90, 91 (N.Y. Sup. Ct. 1991).
45 People v. Callace, 673 N.Y.S.2d 137, 138 (N.Y. Co. Ct. 1991).
46 State v. Thomas, 586 A.2d 250, 252 (N.J. Super. Ct. App. Div. 1991).

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80

Sewell v. State, 592 N.E.2d 705, 706-08 (Ind. Ct. App. 1992).
Commonwealth v. Bison, 618 A.2d 420, 425-26 (Pa. Super. Ct. 1992).
49 Whitsel v. State, 525 N.W.2d 860, 863 (Iowa 1994).
50 Id. at 863-64.
51 People v. Kellar, 605 N.Y.S.2d 486, 486 (App. Div. 1993).
52 People v. Washington, 665 N.E.2d 1330, 1336-37 (Ill. 1996).
53 Jenner v. Dooley, 590 N.W.2d 463, 472 (S.D. 1999).
54 Id. at 466.
55 Id. at 472.
56 Mary McCarty & Laura A. Bischoff, My God, This Thing is Horrifying,
Dayton Daily News, Aug. 8, 2006, at A6.
57 Jennifer Thompson, Op-Ed., I Was Certain, But I Was Wrong, N.Y. Times,
June 18, 2000, § 4, at 15.
58 Adam Liptak, Study of Wrongful Convictions Raises Questions Beyond DNA,
N.Y. Times, July 23, 2007, at A1.
59 Holly Schaffter, Post-conviction DNA Evidence: A 500 Pound Gorilla in State
Courts, 50 Drake L. Rev. 695, 735 (2002).
60 Virginia Department of Planning and Budget, 2001 Fiscal Impact
Statement, Storage and Testing of Certain Evidence, Writ of Actual
Innocence, Mar. 7, 2001, http://leg1.state.va.us/cgi-bin/legp504.exe?ses=011
&typ=bil&val=SB1366 (follow “impact statement” hyperlink adjacent to “Bill
text as passed Senate and House (SB1366ER)”).
61 Margaret A. Berger, Lessons from DNA: Restriking the Balance Between
Finality and Justice, in DNA and the Criminal Justice System, supra note
13, at 109, 115.
62 National Conference of State Legislatures, Comparison of State Post
Conviction DNA Laws, http://www.ncsl.org/programs/health/genetics/
DNAchart.htm (last visited June 20, 2008).
63 California Senate Bill 1342 Task Force, Post-conviction DNA Testing Task
Force Final Report, http://ag.ca.gov/publications/finalproof.pdf (last visited
June 17, 2008).
64 Tim Junkin, Bloodsworth 46 (2005).
65 Id. at 53.
66 Id. at 91.
67 Id. at 283.
68 Raju Chebium, Kirk Bloodsworth: Twice Convicted of Rape and Murder,
Exonerated by DNA Evidence, CNN, June 6, 2000, http://archives.cnn.
com/2000/LAW/06/20/bloodsworth.profile/index.html.
69 Jones, supra note 6, at 1245; Junkin, supra note 64, at 245.
70 Chebium, supra note 68.
71 Stephanie Hanes, DNA That Freed Man Leads to New Suspect; Killing: Kirk
Bloodsworth, Convicted and Then Cleared in the Rape-Murder of a Child, Learns a
Man He Knew in Prison is Charged with the Crimes, Balt. Sun, Sept. 23, 2003,
at 1A.
72 Susan Levine, Death Row Inmate Hears Hoped-for Words: We Found Killer,
Wash. Post, Sept. 6, 2003, at A1.
73 Junkin, supra note 64, at 268.
74 Deborah Rieselman, Wrongfully Imprisoned Man Thanks UC Students for
Freedom, U. Cin. Mag., http://www.magazine.uc.edu/exclusives/elkins.htm
(last visited on June 19, 2008).
75 Phil Trexler, Girl’s Story Again Key, This Time in Bid to Free Uncle Convicted
in 1998 Slaying, Akron Beacon J., May 24, 2002, at A1.
76 State v. Elkins, No 21380, 2003 WL 22015409, at 4-5 (Ohio App. 9th Aug.
27, 2003).
77 Phil Trexler, Woman’s Lonely Battle is Won at Last; Melinda Elkins Lost Her
Mother to Murder, Her Husband to Injustice, and Her Sister to Suspicion. Now
Comes Healing, Akron Beacon J., Dec. 22, 2005, at A1.
78 Phil Trexler, Judge Grants Request for Feb. 23 Hearing over New DNA
Evidence in 1998 Slaying, Akron Beacon J., Dec. 29, 2004, at B1.
79 Rieselman, supra note 74.

Cynthia Bowers, Wife’s Detective Work Frees Hubby, CBS News, Dec. 20,
2005, http://www.cbsnews.com/stories/2005/12/20/earlyshow/main1140199.
shtml.
81 McCarty & Bischoff, supra note 56.
82 Rieselman, supra note 74.
83 Id.
84 McCarty & Bischoff, supra note 56.
85 Id.
86 Phil Trexler, Ohio to Settle Elkins Lawsuit: Local Man Exonerated in 1998
Murder, Rape to Get $1.075 Million for His Years in Prison, Akron Beacon J.,
Mar. 31, 2006, at A1.
87 Cal. Penal Code § 1405(c)(1)(B) (West, WestLaw through 2008 Reg.
Sess. Ch. 31 & 2007-2008 Third Exec. Sess. Ch. 7).
88 Lisa Arthur & Jay Weaver, DNA Testing Deadline Challenged, Miami
Herald, Aug. 7, 2005, at B2.

48

89 Neb.

Rev. Stat. § 29-4118 (2001).
L.R. 214, 100th Leg., 1st Reg. Sess. (Neb. 2007).
91 150 Cong. Rec. S11612 (statement of Sen. Leahy).
92 Hearing, supra note 23, at 2 (statement of Sen. Orrin Hatch).
93 Address Before a Joint Session of the Congress on the State of the Union,
41 Weekly Comp. Pres. Doc. 126, 130 (Feb. 2, 2005).
94 Mary Fitzgerald, Victims Push for DNA Bill on Hill, Wash. Post, Sept. 10,
2004, at A27.
95 Arthur & Weaver, supra note 88.
96 Brooke Masters, Two Conservative Jurists Back DNA Testing, Wash. Post,
Mar. 29, 2002, at A7.
97 William Sessions, Op-Ed., DNA Tests Can Free the Innocent. How Can We
Ignore That?, Wash. Post, Sept. 21, 2003, at B2.
98 Nat’l Comm’n, supra note 22, at iii.
99 Barry Scheck et al., Actual Innocence 247-48 (2001).
100 Mark Lee, The Impact of DNA Technology on the Prosecutor: Handling
Motions for Post-Conviction Relief, 35 New Eng. L. Rev. 663, 664 (2001).
101 Ariz. v. Youngblood, 488 U.S. 51, 66 (1988) (Blackmun, J., dissenting).
102 Greene & Moffeit, supra note 37.
103 Berger, supra note 61, at 115.
104 Arthur & Weaver, supra note 88.
105 Fernanda Santos, DNA Evidence Frees a Man Imprisoned for Half His Life,
N.Y. Times, Sept. 21, 2006, at B1; The Innocence Project, Know the Cases:
Jeff Deskovic, http://www.innocenceproject.org/Content/44.php (last visited
June 20, 2008).
106 Christian, supra note 14, at 1236.
107 National Conference of State Legislatures, supra note 62.
108 Bieber, supra note 13, at 27.
109 Elements of this model policy were inspired by, or taken from, the following sources: 18 U.S.C.A. § 3600 (West, WestLaw through 2008 Pub. L. 110244); The Innocence Project, An Act Concerning Access to Post-Conviction
DNA Testing, http://www.innocenceproject.org/docs/Model_Statute_
Postconviction_DNA.pdf (last visited on June 17, 2008); The Innocence
Project, “An Act to Improve the Preservation and Accessibility of Biological
Evidence,” http://www.innocenceproject.org/docs/Preservation_Evidence_
Prescriptive_08.pdf (last visited on June 17, 2008); and Nina Morrison,
Essential Elements of Postconviction DNA Testing Statutes, Innocenceproject.
org, Oct. 2, 2003, http://www.innocenceproject.org/docs/IP_Legislation_
Memorandum.html.
110 Garrett, supra note 10, at 130.
111 Id. at 120.
112 Id. at 66.
113 Id. at 67.
114 The Innocence Project, supra note 11.
90

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THE JUSTICE PROJECT

EDUCATION
FUND

Working to Increase Fairness and Accuracy in the Criminal Justice System

ABOUT THE JUSTICE PROJECT
The.Justice.Project.is.comprised.of.two.
nonpartisan.organizations.dedicated.to.fighting.
injustice.and.to.creating.a.more.humane.and.
just.world..The.Justice.Project,.Inc.,.which.
lobbies.for.reform,.and.The.Justice.Project.
education.Fund,.which.increases.public.
awareness.of.needed.reforms,.work.together.
on.the.Campaign.for.Criminal.Justice.reform.to.
reaffirm.America’s.core.commitment.to.fairness.
and.accuracy.by.designing.and.implementing.
national.and.state-based.campaigns.to.advance.
reforms.that.address.significant.flaws.in.the.
American.criminal.justice.system,.with.particular.
focus.on.the.capital.punishment.system.

.

THE JUSTICE PROJECT STAFF
John F. Terzano
President
Joyce A. McGee
executive.Director
Robert L. Schiffer
executive.Vice.President
Kirk Noble Bloodsworth
Program.officer
Jeff Miller
Director.of.Communications
Jane Ryan
Director.of.Development
Edwin Colfax
Director.of.State.Campaigns
Rosa Maldonado
Director.of.Finance.and.Administration
Daniel Aaron Weir
Director.of.National.Campaigns
Michelle Strikowsky
Communications.Coordinator
Leah Lavin
Development.Associate
Joseph House
Communications/Development.Associate
Lauren Brice
office.Manager
For.information.on.ordering.additional.
copies.of.this.policy.review,.contact.
The.Justice.Project.at.(202).638-5855.
or.info@thejusticeproject.org
1025.Vermont.Avenue,.Nw,.Third.Floor
washington,.DC.20005
(202).638-5855.•.Fax.(202).638-6056
www.thejusticeproject.org
©2008.The.Justice.Project.—.All.rights.reserved.

NATIONAL AGENDA FOR REFORM
The Justice Project (TJP) has developed a national program of initiatives designed to address and affect the policies and procedures that perpetuate errors and contribute to
the conviction and incarceration of innocent people, especially within the death penalty system. As such, TJP advocates for 1) improvements in eyewitness identification procedures; 2) electronic recording of custodial interrogations;
3) higher standards for admitting snitch or accomplice
testimony at trial; 4) expanded discovery in criminal cases;
5) improvements in forensic testing procedures; 6) greater
access to post-conviction DNA testing; 7) proper standards
for the appointment and performance of counsel in capital
cases; and 8) safeguards against prosecutorial misconduct.
As part of its efforts to increase fairness and accuracy
in the criminal justice system, TJP is developing comprehensive policy reviews on each of the eight reform initiatives outlined above. The policy reviews are designed to
bridge the education gap and provide the necessary information with which policymakers, legal and law enforcement practitioners, advocates, and other stakeholders
learn about the best practices within these reform areas,
the reasoning behind small yet important changes in
procedure, their practical effect, and the costs and benefits
of implementation. For more information, please visit
www.thejusticeproject.org.
ACKNOWLEDGEMENTS
The Justice Project would like express special thanks to
the following people for their contributions in developing
this policy review:
Karen Daniel, CenteronWrongfulConvictionsat
NorthwesternUniversitySchoolofLaw
Brandon L. Garrett, TheUniversityofVirginiaSchoolofLaw
Stephen Saloom, TheInnocenceProject
David M. Siegel, NewEnglandSchoolofLaw
The Justice Project’s former and current interns:
Megha Desai, Rebecca Estes, Stephanie Gladney, Liz
Gottmer, Dardi N. Harrison, Delia Herrin, Abby Hexter,
Alanna Holt, Eric James, Rosa Malley, Fiona McCarrick,
Sarah Nash, Kate Ory, David Seitzer, and Margaret Tucker.

“Law’s evolution is never done, 
and for every improvement made 
there is another reform that is overdue.”
— J ustice W illiam J. B rennan , J r .

The Justice Project is comprised of two
nonpartisan organizations dedicated to
fighting injustice and to creating a more
humane and just world. The Justice Project,
Inc., which lobbies for reform, and The
Justice Project Education Fund, which
increases public awareness of needed
reforms, work together on the Campaign for
Criminal Justice Reform to reaffirm America’s
core commitment to fairness and accuracy
by designing and implementing national and
state-based campaigns to advance reforms
that address significant flaws in the American
criminal justice system, with particular focus
on the capital punishment system.
This report is made possible primarily
through a grant from The Pew Charitable
Trusts to The Justice Project Education Fund.
The opinions expressed are those of the
author(s) and do not necessarily reflect .
the views of the Trusts. For additional
information, questions or comments, .
please contact our offices at (202) 638-5855,
or email info@thejusticeproject.org.

THE JUSTICE PROJECT

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